The Takeaway: Marriage Ruling Is Welcome News for Older Gay and Lesbian Couples

The following is a guest post by Kim Keister.

The ruling by a federal appeals court on May 30 that the Defense of Marriage Act violates the Constitution by limiting marriage to a union between a man and a woman brings at least some gay couples a step closer to sharing federal benefits long enjoyed by heterosexuals.

The ruling, which won't be enforced before the U.S. Supreme Court weighs in, has particular importance for older gay and lesbian couples. Many of the benefits denied by DOMA are designed to protect older people from economic insecurity in the face of serious illness or the death of a spouse, as outlined in a report published in 2010 by SAGE (Services and Advocacy for Gay, Lesbian, Bisexual & Transgender Elders), a New York-based nonprofit organization. Some examples that Peter Jaret pointed out in an article for AARP:

  • Social Security spousal benefits. If one spouse in a heterosexual marriage works and the other doesn't, the nonworking spouse still receives Social Security benefits, calculated at 50 percent of what the working spouse receives. The policy, called a "spousal benefit," was put in place to protect spouses who stay at home to raise families. Same-sex couples are denied those benefits - even though many raise children. If one same-sex spouse doesn't work, he or she receives nothing.
  • Social Security survivor benefits. If a working spouse in a heterosexual marriage dies, the nonworking spouse receives the partner's full Social Security benefits. A surviving spouse who earns less in Social Security automatically qualifies for the deceased spouse's higher benefit. Even ex-spouses qualify - as long as they are man and woman. Not so the surviving spouse of a same-sex marriage."¨ According to the SAGE report, same-sex couples receive up to 31.5 percent less in Social Security benefits than comparable heterosexual couples.
  • Medicaid long-term care benefits. When one married spouse becomes seriously ill or incapacitated and requires long-term care, Medicaid benefits typically prevent the healthy spouse from being impoverished by the high costs of such care. These protections do not exist for same-sex couples. In a heterosexual marriage, for example, if one spouse enters a nursing home, the other spouse can keep the couple's home, household goods and one car. A same-sex spouse risks losing it all, depending on who officially owns the property.
  • Inheritance laws. Property passes automatically to a surviving spouse in a heterosexual marriage. Not so for same-sex couples. Many such couples must make complex and often expensive legal arrangements to ensure that decision-making and inheritance passes to a surviving spouse.

There are plenty more examples that may seem plain unfair - and may be nearing an end.

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